Screen shot from alleged trademark bully Pusser’s Web site
Some Seattle bartenders have banded with their New York bretheran in an effort to stop what they view as trademark bullying.
Seattle Met magazine’s Sauced Blog recently wrote that British Virgin Island rum maker Pusser’s Ltd. Corp. threatened legal action action against two New York bartenders who opened a tiki bar called “Painkiller” and mixed a drink they called the “Painkiller.”
Pusser’s owns two federal registrations with the PAINKILLER formative: PAINKILLER for “alcoholic fruit drinks with fruit juices and cream of coconut and coconut juice” and PAINKILLER COCKTAIL MIX for “non-alcoholic mixed fruit juices.” It also owns a couple pending PAINKILLER applications for “restaurant and bar services.”
The Painkiller bar’s drink contained rum, but not Pusser’s rum.
Sauced reported that a number of Seattle bartenders have joined a Facebook group calling for a boycott on Pusser’s.
Seattle bartender Jim Romdall signed on. “None of us feel like you should be able to copyright the recipe of a cocktail or the name of a cocktail,” he told Sauced. “That’s like Ragu trying to copyright ‘Bolognese.’”
A few thoughts. First, put into trademark terms, the bartenders spoiling for a boycott appear to argue that “Painkiller” is a generic term for a type of drink. I’m not into fancy drinks, so I don’t know if that’s true. But a number of bartenders — who would seem to be in a good position to know — have signed onto the boycott.
Second, this isn’t the first time STL has seen a trademark dispute come out of the name of a mixed drink. Longtime readers may have a distant memory that Gosling’s took a similar stance with respect to the “Dark ‘n Stormy” drink. They claimed the drink is made exclusively with Gosling’s Black Seal rum, a splash of ginger beer, and nothing else. In their view, if it’s not made with Gosling’s, it’s not a “Dark ‘n Stormy.” The New York Times covered that dispute. At the time, I stated that cocktail trademark disputes are rare. But now it looks like it’s not as rare as I thought.
Third, the Facebook boycott call illustrates what can happen if you’re perceived as a trademark bully. Throw your weight around with the little guy too much and you can be on the receiving end of an Internet campaign against you. That’s something that Professor McCarthy warned of when he spoke at Microsoft in February.
So for those in the know, is “Painkiller” a type of drink? Or is it a specific drink that’s made with Pusser’s rum?
For what it’s worth, Wikipedia declares that “Painkiller” to be a rum cocktail “traditionally made by frothing a mixture of dark rum, orange juice, pineapple juice, sweetened coconut cream, and shaved ice, and a topping with nutmeg.” It doesn’t mention Pusser’s. Again, for what it’s worth.
Great additional discussion at Cocktailians, my new favorite blog.